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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8941 OF 2009
Sou. Mangesha Ashok Chavan,
Age 30 years, Occupation Household,
R/o. Awarde, Taluka Patan,
District Satara ... Petitioner
Versus
1. Mr. Sayajirao Damodhar Khamkar,
Age 45 years, Occ. Household,
Residing at Awarde, Taluka Patan,
District Satara.
2. Mr. Santosh Babanrao Mohite,
Age 35 years, Occ. Household,
Residinga t Awarde, Taluka Patan,
District Satara.
3. The State of Maharashtra, through
the Additional Commissioner, Pune,
Division Pune. ... Respondents
Mr. U.P. Warunjikar for the Petitioner.
Mr. V.S. Masurkar, Government Pleader for R. No. 3.
CORAM : FERDINO I. REBELLO &
D.B. BHOSALE, JJ.
DATED : NOVEMBER 04, 2009
Oral Judgment (Per Ferdino I. Rebello,J.):
Rule. By consent heard forthwith.
2. The Petitioner was elected as a Member of the Gram Panchayat Awarde
from Ward No. 2. The Petitioner subsequently came to be elected as Deputy
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Sarpanch. A complaint was filed against the present Petitioner by Respondent
Nos. 1 and 2 that on 12.9.2001 the Petitioner No. 1 had given birth to a third
child. A show cause notice came to be issued by the Collector calling upon
the present Petitioner to appear before the Collector. The Petitioner showed
cause denying the allegation. The collector thereafter heard the matter and
was pleased to pass the order of 17.9.2008 holding that the present petitioner
had acquired disqualification as the Petitioner has given birth to a third child
after the cut off date. The relevant provision is section 14(1) Clause (J)(i) of
the Bombay Village Panchayat Act, 1958 (hereinafter shall be referred to as
“Panchayat Act”). The same reads as under :
“14. Disqualifications : (1) No person shall be a
member of a Panchayat continue as such, who –
…………………………………………………
(j-1) has more than two children.”
The Petitioner being aggrieved preferred an appeal being Appeal No. 154
of 2008. On 9.9.2009 the appeal came to be dismissed and the order passed
by the Collector was confirmed. Based on the same, Gram Sevak submitted a
report regarding the vacancy that had arisen.
3. By the present petition, the petitioner sets out that the Petitioner being a
female does not have any choice of her own in her married life. The provisions of the
Panchayat Act, therefore to the extent that it provides for disqualification for having
a third child needs to be challenged. The substantial grounds which are relevant
may be reproduced :
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“(1)At the outset, it is submitted that the amendment in the provisions of the
Bombay Village Panchayat Act are contrary to the right of equality. There can
be equality amongst the equal. However, it is a matter of fact that the man
and woman are standing on different footings so far as the reproductive
organs are concerned. Consequently, the pregnancy and delivery are the
aspects in respect of which there cannot be any equality between male and
female. Consequently it is submitted that the amendment is contrary to the
provisions of Article 14 of the Constitution of India, 1950.
(2) The Petitioner submits that every female is having a right to enjoy her
motherhood as well as womanhood. The nature has provided different
reproductive organs to female, and, therefore, putting restriction of number
of children for female candidate is violative of Article 21 of the Constitution
of India, 1950.”
4. It may be mentioned that the learned counsel apart from addressing us
on the challenge to the provisions on merits, has not disputed the finding
nor has raised any objection to the procedure. The Petitioners have therefore,
sought the following prayer :
“Be pleased to hold that the provisions of Section 14(1) Clause J(i) of
Bombay Village Panchayat Act, 1958 is violative of Articles 14 and
21 of Constitution of India, 1950 and be pleased to quash and set
aside the same by issuing a writ of certiorari or any other writ or order
or direction in th nature of writ of certiorari.”
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As a consequential relief, the Petitioners has prayed for quashing the order
dated 17.11.2008 and 9.9.2009.
5. Elaborating the learned counsel submits that in India, there is patriarchal
family. A female member of the family does not have any choice so far as sexual
life, pregnancy and delivery of the child is concerned. Consequently a judicial
notice ought to be taken that the female member in patriarchal family does not have
any effective control over the pregnancy as well as delivery of the children. A female
citizen considering article 21 of the Constitution has a right to develop pregnancy
and deliver a child if there is pregnancy. Such right cannot be curtailed by the
provisions of the Panchayat Act earlier referred. According to Petitioner, the male
candidate may be disqualified on that count. However, in so far as female candidate
is concerned, there should not be any disqualification on the ground that female
candidate has given birth to a third child.
6. In our opinion, the matter is no longer res integra, as the contentions to the
vires of the legislation in our opinion are covered by the judgment of the Supreme
Court in Javed and Others Versus State of Haryana and Others (2003) 8 Supreme
Court Cases 369, where similar provisions were considered. The supreme Court
formulated five challenges which are as under :
1. ” As agreed to at the Bar, the grounds of challenge can be categorized into
five: (i) that the provision is arbitrary and hence violative of Article 14 of the
Constitution, (ii) that the disqualification does not serve the purpose sought to
be achieved by the legislation, (iii) that the provision is discriminatory; (iv)
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5that the provision adversely affects the liberty of leading personal life in all its
freedom and having as many children as one chooses to have and hence, is
violative of Article 21 of the Constitution; and (v) that the provision
interferes with the freedom of religion and hence, violates Article 25 of the
Constitution.”
In the instant case we are not concerned with the fifth challenge.
7. The learned Supreme Court considered challenges Nos. 1 to 3, as they were
based on Article 14. The Supreme Court noted that classification between the
persons having more than two children and persons having not more than two
children is well defined and well perceptible. Persons having more than two living
children are clearly distinguishable from persons having not more than two living
children. The two constitute two different classes and the classification is founded
on an intelligible differentia clearly distinguishing one from the other. One of the
objects sought to be achieved by the legislation is popularizing the family
welfare/family planning programme. The disqualification enacted by the provision
seeks to achieve the objective by creating a disincentive. The classification does not
suffer from any arbitrariness. The number of children viz. Two is based on legislative
wisdom. It could have been more or less. The number is a matter of policy decision
which is not open to judicial scrutiny.”
Addressing itself to the issue whether the legislation serves its object, the
court observed that one of the objects of the enactment is to popularize family
welfare/family planning programme. This is consistent with the National Population
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Policy. The provisions of Article 243-G were considered. It noted entries 24 and 25
of the Eleventh Schedule. Addressing itself to the issue as to whether the provision is
discriminatory. After considering various aspects including case laws on the subject,
the court observed as under :
“To make a beginning, the reforms may be introduced at the grass-
root level so as to spiral up or may be introduced at the top so as to
percolate down. Panchayats are grass root level institutions of local
self-governance. They have a wider base. There is nothing wrong in
the State of Haryana having chosen to subscribe to the national
movement of population control by enacting a legislation which
would go a long way in ameliorating health, social and economic
conditions of rural population, and thereby contribute to the
development of the nation which in its turn would benefit the entire
citizenry.”
The court therefore, held that the legislation is not arbitrary and the Act
seeks to achieve a laudable purpose socio economic welfare and health care of the
masses and is consistent with the national population policy.
8. The Court then considered submissions (iv) and (iv). In answering the issue,
the court noted that right to contest an election by having more than two
living children does not contravene any fundamental right nor does it cross
the limits of reasonability. Rather it is a disqualification conceptually devised
in national interest. Addressing itself to the issue of violation under Article
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21, the court noted that it has to be remembered that complacence in
controlling population in the name of democracy is too heavy a price to pay,
allowing the nation to drift towards disaster. Reliance was placed on Air
India Vs. Nergesh Meerza, 1981 4 S.C.C. 335 where the Air Hostess gave
birth to the third children when there were two existing children. Her
termination was upheld based on a rule barring employment if the person had
a third child.
9. Dealing with the women’s role, the learned counsel now seeks to contend that
they have no control and this issue was not considered in Javed and Others
(supra). In our opinion, the argument is misplaced. The issue was considered
in Para 63. We may gainfully reproduce the same :
“It was also submitted that the impugned disqualification would hit
the women worst, inasmuch as in the Indian society they have no
independence and they almost helplessly bear a third child if their
husbands want them to do so. This contention need not detain us any
longer. A male who compels his wife to bear a third child would
disqualify not only his wife but himself as well. We do not think that
with the awareness which is arising in Indian womenfolk, they are so
helpless as to be compelled to bear a third child even though they do
not wish to do so. At the end, suffice it to say that if the legislature
chooses to carve out an exception in favour of females it is free to do
so but merely because women are not excepted from the operation of
the disqualification it does not render it unconstitutional.”
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In our opinion, therefore, challenge both under Article 14 and 21 have to be
rejected. Constitutional amendments have been made providing for reservation for
women in the local bodies. The object being to empower women so that they have
a say in the economic development taking place under our democratic process. As
leaders in their community they have to show a way to others specially women. The
restriction on number of children is to create awareness of the danger of an
increasing population. Every increase. has a consequential fall out on funds,
education and health services amongst others. Those seeking to be leaders cannot
contend that their fundamental rights are being violated. The right to contest elections
is merely statutory.
There is no merit in this petition. Rule discharged. No order as to costs.
(D.B. BHOSALE, J.) (F.I. REBELLO,J.)
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